BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD

F.A.No.195/2013 against  C.C.No.687/2010 , Dist. Forum-II,Hyderabad. 

Between:

Dr. B.Hari Krishna,

S/o. late B.Nagaraj,

Aged about 34 years, Occ:Doctor,

R/o.H.No.10-2-59, Pipe Line Road,

Ramalayam Street, Fathenagar,

Hyderabad – 18.                                              ….Appellant/

                                                                        Complainant

     And

M/s. Bajaj  Allianz General Insurance Co.Ltd.,

Rep. by Branch Manager, having office at

Far East Plaza, H.No.3-6-111/8,

Street No.18,  Main Road,

Himayatnagar, Hyderabad -29.                             … Respondent/

                                                                          Opp.party

Counsel for the Appellant     :      M/s. C.M.R.Velu

Counsel for the respondent  :       Mr.N.Mohan Krishna   

QUORUM:   SMT. M.SHREESHA, HON’BLE INCHARGE PRESIDENT,

                                         AND

                    SRI S.BHUJANGA  RAO, HON’BLE MEMBER.

               TUESDAY, THE   TWENTY  NINTH DAY OF  OCTOBER,      

                         TWO THOUSAND  THIRTEEN .

Oral Order: (Per  Sri S.Bhujanga Rao, Hon’ble Member)           

                                        ***

        This appeal is directed against the order dt.04.02.2013  of the District Consumer Forum-II, Hyderabad  made in C.C.No.687/2010 filed by the appellant/complainant seeking direction to the opposite party to pay a sum of Rs.2,64,214/- towards his claim under the policy, to pay Rs.50,000/- towards  compensation and Rs.10,000/-  towards costs of the complaint. 

The brief  case of the complainant   as set out in the complaint is as follows:

The complainant is the owner of the  Toyota Qualis  vehicle bearing registration no. AP 28 BB 0502.  The said vehicle is  insured   with the opposite party under the policy  bearing no.OG-10-1801-1801-000-18346.The above  said  vehicle met with an accident at 8.30 p.m. on 01.01.2010 at Bandlaguda  High Way while the complainant was returning from Chilkur Balaji Temple  to  Hyderabad.   The accident occurred while the motor cycle suddenly crossed without following the traffic rules.  To save the motor cyclist, the driver of the quails vehicle hit against the road divider and the vehicle sustained severe damage.  On the instructions of the traffic police, the vehicle was removed from the midst of the road to clear the traffic.   The police further informed the complainant that there is no  necessity to register FIR since no third party was injured in the accident. The vehicle was removed to the work shop  of the Toyota Company namely Radha Krishna  Toyota, Sanath Nagar,  Hyderabad. The incident was reported to the opposite party on 02.01.2010.

The further case of the complainant is that on receipt of the information regarding  the accident, the opposite  party   wrote a  letter   dt.05.01.2010  to the complainant, to submit the  necessary documents.  The complainant caused  a reply dt.11.01.2010. Thereupon, the opposite party  by his letter dt.12.01.2010  informed the complainant that  in those cases which exceeds 75% of IDV (Insured Declared Value) the claim is treated as  CTL (Constructive  Total  Loss)  and requested the complainant to  handover the insured  vehicle along with original RC, Policy and set of keys to process the claim.  The above said Toyota  Company estimated the cost of repair of the  damaged vehicle at Rs.3,08,172/-. The complainant  submitted the original estimate to the opposite party and further  by letter dt.03.02.2010  requested the opposite party  that he is not interested to surrender the vehicle for  disposal  and requested the opposite party to settle the claim at 75%   of the insured value i.e. Rs.2,10,000/- and the complainant agreed to bear the balance. As there was no response from the opposite party, as the vehicle lying unrepaired, the complainant  spent his own money by making payment of Rs.2,64,214/-  and took delivery of the  vehicle after repairs.

        While so, by letter dt.26.04.2010, the opposite party forwarded a cheque no.668729 dt.23.04.2010 for Rs.1,14,616/-  drawn in favour of the complainant on Standard Chartered Bank, on condition of acceptance of the cheque  will be considered as full and final discharge of the said insurance claim.  The opposite party approved only Rs.1,14,616/-  instead of 75%  of the insured value  i.e. Rs.2,10,000/-. The complainant though paid Rs.2,64,214/-,   but requested the opposite party to pay Rs.2,10,000/-  only, which they have not considered and passed the claim only for Rs.1,14,616/-, thus putting the complainant at loss.   Thus, there is deficiency in service on the part of the opposite party . Hence the complaint.          

         Resisting the complaint, the opposite party filed written version denying all the material allegations made in the complaint and contended that the complainant is not  a ‘consumer’ as defined under Section 2(d) of the Consumer Protection Act. The opposite party admitted that the complainant got  Private Car  Package Policy to his Toyota Qualis vehicle and the said vehicle was insured with the opposite party and the period of insurance is from 29.8.2009 to 28.8.2010.

        This opposite party further contended that the complainant was informed vide letters dt.12.1.2010, 23.1.2010, 31.01.2010, 09.2.2010  that since the assessed loss  subject to the terms and conditions of the policy   exceeds 75% of IDV (Insured Declared Value) the said claim  will be  treated as CTL (Constrictive  Total Loss). Hence, requested the  complainant to  give consent for the same and handover the vehicle to the insurer  along with original RC, Policy and  set of keys to process the claim. The complainant addressed a letter to the opposite party on  03.02.2010  stating that his vehicle is precious  to him, hence cannot be  surrendered. As the complainant refused to handover the vehicle, the opposite party sent a cheque bearing no.668729  to him for Rs.1,14,616/-   towards full and final discharge of the insurance claim,  as per the report of the surveyor. The opposite party did not pay IDV to the insured since the complainant  did not surrender the vehicle, which is a mandatory requirement. Hence, there is no deficiency in service on the part  of the opposite party. The complaint is therefore liable to be dismissed with exemplary costs.

         During the course of enquiry of the complaint by the  District Forum, in order to prove his case, the complainant filed his evidence affidavit and got marked Exs.A1 to A12. On behalf of the opposite party its Legal Officer, S.Raghu filed  his evidence affidavit and got marked Exs.B1to B12.

        Upon hearing the counsel for both the parties and on consideration of the material on record, the District Forum allowed the complaint  in part directing the opposite party to pay a sum of Rs.95,384/-( Rs.2,10,000/- -1,14,616/-)    to the complainant  with subsequent interest at 9% from 23.04.2010 till the payment and also   to pay Rs.5000/-  towards compensation for mental agony and to pay Rs.2000/- towards costs.

        Not satisfied with the above said order, the complainant  preferred the appeal contending that the  District Forum failed to see that Ex.A1 original  cheque dt. 23.4.2010 for Rs.1,14,616/-  which was not encashed by the complainant, but filed  as one of the exhibits before the District Forum.    That the District Forum committed error in  considering that the opposite party has already paid Rs.1,14,616/-  through the  said  cheque  which is not correct. That the District Forum ought to have allowed the complaint holding that the opposite party is liable  for Rs.2,64,214/-  together with interest at  9%  from 23.04.2010 . That the compensation of  Rs.5000/- awarded for the mental agony by the District Forum is too less. That the District Forum ought  to have seen that the opposite party while forwarding cheque for Rs.1,14,616/-,  put a condition  to accept the cheque  as full and final settlement.  For this reason, the complainant did not encash the cheque and filed  this complaint.     The appellant/complainant finally prayed to set aside the impugned order of the  District Forum. 

        We  heard the counsel for both the parties and perused the entire material placed on record. 

        Now the point for consideration is whether the impugned  order of the District Forum is vitiated for misappreciation of fact or law? 

         The admitted facts are:

The complainant is  the   owner of Toyota Qualis Vehicle  bearing registration No.AP 28 BB 0502. The said vehicle was  insured  with the opposite party under Car Package Policy bearing  OG-10-1801-1801-000-18346 and the period of insurance is  from 29.08.2009 to 28.08.2010. 

        The above said  vehicle met with an accident at 8.30 p.m. on 01.01.2010  at Bandlaguda High Way, while the complainant was returning from Chilkur Balaji Temple to Hyderabad. The vehicle was shifted to   the workshop of Toyota Company namely Radhakrishna Toyota by towing.  The incident was reported to the opposite party on 02.01.2010   and on receipt of the information regarding the accident, the opposite party wrote a letter dt.05.01.2010 to the complainant to submit necessary documents. Accordingly, the complainant made representation dt.11.01.2010  Thereupon, the opposite party by their letter dt.12.01.2010 informed the complainant that    as per the terms and conditions of the policy, if the assessed damage exceeds 75% of the IDV (Insured Declared Value)    then it has to be construed  as CTL (Constructive Total Loss) and the opposite party will pay IDV on surrender of insured vehicle to them. 

        Instead of surrendering the vehicle, the complainant addressed a letter to the opposite party on 03.02.2010  stating that  his vehicle is  precious to him and hence the same cannot be surrendered. As the complainant did not surrender the vehicle  as required, the opposite parties sent a cheque   bearing no.668729  dt.23.04.2010,  i.e. Ex.A1  to the complainant for Rs.1,14,616/-  towards the full and final  discharge of insurance claim as per the report of the surveyor.

        It is the case of the complainant that Radha Krishna Automobile  Pvt. Ltd.,  the authorized work shop of  Toyota  Company  estimated the cost of the repair of the damaged  qualis vehicle at Rs.3,08,172/-.  Since there was no response by the opposite party, to his letter dt.03.02.2010, the complainant spent his own money by making payment of Rs.2,64,214/-  and took delivery of the vehicle after repairs. The complainant requested the opposite parties to pay Rs.2,10,000/- towards 75% of the insured declared  value though he spent Rs.2,64,214/-, which the opposite party has not considered  and passed the claim  only for Rs.1,14,616/-,  which is unfair and deficiency in service.  On the other hand, the contention of the opposite party is that since the assessed loss  subject to the terms and conditions of the policy exceeds 75% of IDV (Insured Declared  Value)  the said claim is stated as CTL (Constructive  Total Loss) and the complainant is requested to handover the vehicle to the insurer  along with the original RC, Policy and set of keys to process the claim.   Instead of cooperating  for settlement of the claim, the complainant addressed a letter to the opposite party on  03.02.2010  stating that his vehicle is  precious to him, hence the vehicle cannot be surrendered. As the complainant did not surrender the vehicle along with the original RC, Policy and set of keys, the opposite party sent a cheque  to him for Rs.1,14,616/- vide cheque bearing no.668729 dt. 23.4.2010   towards the full and final discharge of the insurance claim, basing on the surveyor’s report.   Thus, there is no deficiency in service on the part of the opposite parties. 

        After considering the contentions of both the parties, the District Forum directed the opposite party to pay a sum of Rs.95,384/- ( after deducting the amount paid by the opp.party  i.e. 1,14,616/-  from   Rs.2,10,000/- the amount liable to pay by the opposite party)   to the complainant with subsequent interest.  Admittedly, the opposite party has not preferred any appeal against the said direction of the District Forum to pay an amount of Rs.2,10,000/- to the complainant with subsequent  interest at 9% p.a.

        Now the question for consideration  is whether the sending of the cheque for Rs.1,14,616/-  by the opposite party to the complainant can be treated as payment  towards full and final settlement of the claim of the complainant .

        Ex.A1 is the original cheque  dt.23.4.2010 sent by the opposite  party to the complainant towards the full and final settlement of the claim of the complainant. Admittedly, the complainant did not encash the cheque protesting the settlement  of his claim for Rs.1,14,616/- only towards the full and final settlement of his claim and filed the present complaint on  06.05.2010.

        The opposite party filed Ex.B2 Claim Discharge  cum Satisfaction voucher said to have signed by the complainant and  as seen from Ex.B2 it does not bear the date  and the column  regarding amount received is left blank and  unfilled.  Though the amount of Rs.1,14,616/-  is mentioned  at the bottom,  no revenue stamp is affixed on Ex.B2. It  does not disclose as to when and on which date the amount was received by the complainant. It appears that Ex.B2 is fabricated subsequently on   the blank  printed form, containing the signature of the complainant, which might have obtained at the time of issuing of the subject policy. As stated above, admittedly, the complainant did not encash Ex.A1 cheque sent by the opposite party .

        In view of the  above facts and circumstances, the opposite party failed to prove Ex.B2. Even if it is proved, in our considered view, Ex.B2 voucher cannot be accepted towards the full and final settlement of the claim, especially when the complainant did not accept Ex.A1  cheque as claim towards the full and final settlement of his claim.   

         Since the complainant did not encash the cheque, the opp.party    did  not  part with the amount covered by Ex.A1 cheque.  Since Ex.A1 is  issued more than 3 years  back, the complainant cannot encash the same  now. Issuing of cheque cannot be considered as payment  till  the cheque is encashed. 

        In view of the   above facts and circumstances, the opposite party failed to prove that he paid Rs.1,14,616/-  under Ex.B2 voucher towards the full and final settlement of the claim of the complainant.  Therefore, in our considered view, the opposite party is liable to pay interest on the entire amount of Rs.2,10,000/- from  23.04.2010  till the date of  payment

In the result the appeal is allowed in part directing the respondent/opposite  party to pay Rs.2,10,000/-  to the complainant along with interest at 9%  p.a.  from 23.04.2010 till the date of realization. Subject to  the above modification, the impugned order of the District Forum is retained  in all  aspects.  The respondent/opposite party is directed to pay a sum of Rs.5000/-, to the complainant towards costs of this appeal.  The Respondent/opposite party is directed to comply with the order within 4 weeks from the date of  receipt of this order.

                                                                INCHARGE PRESIDENT

                                                                        MEMBER

Pm*                                                                 Dt.29.10.2013